FILED
FOR PUBLICATION
NOV 16 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
In re: UNITED STATES OF AMERICA; No. 17-72917
DONALD J. TRUMP; U.S.
DEPARTMENT OF HOMELAND D.C. Nos. 3:17-cv-05211-WHA
SECURITY; ELAINE C. DUKE, 3:17-cv-05235-WHA
______________________________ 3:17-cv-05329-WHA
3:17-cv-05380-WHA
UNITED STATES OF AMERICA; 3:17-cv-05813-WHA
DONALD J. TRUMP; U.S. Northern District of California,
DEPARTMENT OF HOMELAND San Francisco
SECURITY; ELAINE C. DUKE, in her
official capacity as Acting Secretary of the
Department of Homeland Security, ORDER
Petitioners,
v.
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF
CALIFORNIA, SAN FRANCISCO,
Respondent,
REGENTS OF THE UNIVERSITY OF
CALIFORNIA; JANET NAPOLITANO,
In her official capacity as President of the
University of California; STATE OF
CALIFORNIA; STATE OF MAINE;
STATE OF MINNESOTA; STATE OF
MARYLAND; CITY OF SAN JOSE;
DULCE GARCIA; MIRIAM GONZALEZ
AVILA; VIRIDIANA CHABOLLA
MENDOZA; NORMA RAMIREZ;
COUNTY OF SANTA CLARA;
SERVICE EMPLOYEES
INTERNATIONAL UNION LOCAL 521;
JIRAYUT LATTHIVONGSKORN;
SAUL JIMENEZ SUAREZ,
Real Parties in Interest.
Petition for Writ of Mandamus
Argued and Submitted November 7, 2017
Pasadena, California
Before: WARDLAW, GOULD, and WATFORD, Circuit Judges.
WARDLAW and GOULD, Circuit Judges:
On September 5, 2017, the Acting Secretary of the Department of Homeland
Security (“DHS”), Elaine Duke, announced the end of DHS’s Deferred Action for
Childhood Arrivals policy (“DACA”), effective March 5, 2018. Begun in 2012,
DACA provided deferred action for certain individuals without lawful immigration
status who had entered the United States as children. Several sets of plaintiffs sued
to enjoin the rescission of DACA under the Administrative Procedure Act (“APA”)
and under various constitutional theories not relevant here.
The merits of those claims are not before us today. The only issue is a
procedural one, raised by the government’s petition for a writ of mandamus. The
2
government asks us to permanently stay the district court’s order of October 17,
2017, which required it to complete the administrative record.1 See Order re
Motion to Complete Administrative Record, Regents of the Univ. of Cal. v. U.S.
Dep’t of Homeland Sec., No. C 17-05211 WHA, 2017 WL 4642324 (October 17,
2017) (“Order”). We have jurisdiction pursuant to the All Writs Act, 28 U.S.C. §
1651. Because the district court did not clearly err by ordering the completion of
the administrative record, we hold that the government has not met the high bar
required for mandamus relief.
One note at the outset: We are not unmindful of the separation-of-powers
concerns raised by the government. However, the narrow question presented here
simply does not implicate those concerns. We consider only whether DHS failed
to comply with its obligation under the APA to provide a complete administrative
record to the court—or, more precisely, whether the district court clearly erred in
so holding. See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402,
420 (1971) (“[R]eview is to be based on the full administrative record that was
before the Secretary at the time he made his decision.”). This obligation is
1
Issues regarding supplementation—as opposed to completion—of the
record and the propriety of discovery on the non-APA claims, including the
propriety of depositions, are not properly before us at this time, and we do not
address them here.
3
imposed to ensure that agency action does not become effectively unreviewable,
for “[i]f the record is not complete, then the requirement that the agency decision
be supported by ‘the record’ becomes almost meaningless.” Portland Audubon
Soc’y v. Endangered Species Comm., 984 F.2d 1534, 1548 (9th Cir. 1993).
Assuring that DHS complies with this requirement—imposed by the APA on all
agencies and embodied in decades of precedent—is undoubtedly a proper judicial
function.
1. “The writ of mandamus is a drastic and extraordinary remedy reserved
only for really extraordinary cases.” In re Van Dusen, 654 F.3d 838, 840 (9th Cir.
2011) (quoting Ex parte Fahey, 332 U.S. 258, 259–60 (1947) (internal quotation
marks omitted)). Indeed, “only exceptional circumstances amounting to a judicial
usurpation of power or a clear abuse of discretion will justify the invocation of this
extraordinary remedy.” Cheney v. U.S. Dist. Court, 542 U.S. 367, 380 (2004)
(internal quotation marks and citations omitted). Ultimately, the issuance of the
writ is “in large measure . . . a matter of the court’s discretion.” Johnson v.
Consumerinfo.com, Inc., 745 F.3d 1019, 1023 (9th Cir. 2014) (quoting United
States v. Sherman, 581 F.2d 1358, 1361 (9th Cir. 1978)).
Our discretion is guided by the five factors laid out in Bauman v. U.S.
District Court, 557 F.2d 650 (9th Cir. 1977). However, we need not consider four
4
of those five factors here, because “the absence of factor three—clear error as a
matter of law—will always defeat a petition for mandamus.” In re Bundy, 840
F.3d 1034, 1041 (9th Cir. 2016) (quoting In re United States, 791 F.3d 945, 955
(9th Cir. 2015)). This factor—whether “[t]he district court’s order is clearly
erroneous as a matter of law,” Bauman, 557 F.2d at 654–55—“is significantly
deferential and is not met unless the reviewing court is left with a definite and firm
conviction that a mistake has been committed.” In re Bundy, 840 F.3d at 1041
(quoting In re United States, 791 F.3d at 955).
2. The district court’s order is not clearly erroneous as a matter of law.
APA § 706 provides that arbitrary and capricious review shall be based upon “the
whole record or those parts of it cited by a party.” 5 U.S.C. § 706. The whole
record “includes everything that was before the agency pertaining to the merits of
its decision.” Portland Audubon, 984 F.2d at 1548; see also, e.g., James Madison
Ltd. by Hecht v. Ludwig, 82 F.3d 1085, 1095 (D.C. Cir. 1996) (“The administrative
record includes all materials compiled by the agency that were before the agency at
the time the decision was made.”) (internal quotation marks and citations omitted).
More specifically, we have explained that the whole administrative record
“consists of all documents and materials directly or indirectly considered by
agency decision-makers and includes evidence contrary to the agency’s position.”
5
Thompson v. U.S. Dep’t of Labor, 885 F.2d 551, 555 (9th Cir. 1989) (internal
quotation marks omitted); see also Bar MK Ranches v. Yuetter, 994 F.2d 735, 739
(10th Cir. 1993) (same). The record is thus not necessarily limited to “those
documents that the agency has compiled and submitted as ‘the’ administrative
record.” Thompson, 885 F.2d at 555 (internal quotation marks omitted).
At the initial case management conference before the district court, the
government agreed to produce the complete administrative record on October 6,
2017. On that date, the government submitted as “the” administrative record
fourteen documents comprising a mere 256 pages, all of which are publicly
available on the internet. Indeed, all of the documents in the government’s
proffered record had previously been included in filings in the district court in this
case, and 192 of its 256 pages consist of the Supreme Court, Fifth Circuit, and
district court opinions in the Texas v. United States litigation.2
Faced with this sparse record, and on the plaintiffs’ motion (opposed by the
government), the district court ordered the government to complete the record to
include, among other things, all DACA-related materials considered by
2
That lawsuit challenged a related but distinct deferred action policy,
Deferred Action for Parents of Americans and Lawful Permanent Residents, or
DAPA. See United States v. Texas, 136 S. Ct. 2271 (2016); Texas v. United States,
809 F.3d 134 (5th Cir. 2015); Texas v. United States, 86 F. Supp. 3d 591 (S.D.
Tex. 2015).
6
subordinates or other government personnel who then provided written or verbal
input directly to Acting Secretary Duke. The district court excluded from the
record documents that it determined in camera are protected by privilege. Order at
*8.
3. The administrative record submitted by the government is entitled to a
presumption of completeness which may be rebutted by clear evidence to the
contrary. Bar MK Ranches, 994 F.2d at 740; see also Thompson, 885 F.2d at 555
(noting that the administrative record “is not necessarily those documents that the
agency has compiled and submitted as ‘the’ administrative record.”). The district
court correctly stated this legal framework and concluded that the presumption of
completeness had been rebutted here. Order at *5. This conclusion was not clear
legal error: Put bluntly, the notion that the head of a United States agency would
decide to terminate a program giving legal protections to roughly 800,000 people3
3
See U.S. Citizenship and Immigration Services, Number of Form I-821D,
Consideration of Deferred Action for Childhood Arrivals, by Fiscal Year, Quarter,
Intake, Biometrics and Case Status Fiscal Year 2012–2017 (June 30) (Sept. 20,
2017), goo.gl/UcGJww.
7
based solely on 256 pages of publicly available documents is not credible, as the
district court concluded.4
The district court identified several specific categories of materials that were
likely considered by the Acting Secretary or those advising her, but which were not
included in the government’s proffered record. For example, the record contains
no materials from the Department of Justice or the White House—other than a one-
page letter from Attorney General Jefferson B. Sessions—despite evidence that
both bodies were involved in the decision to end DACA, including the President’s
own press release taking credit for the decision.5 Nor does the proffered record
include any documents from Acting Secretary Duke’s subordinates; we agree with
the district court that “it strains credulity” to suggest that the Acting Secretary
decided to terminate DACA “without consulting one advisor or subordinate within
DHS.” Order at *4. And the proffered record contains no materials addressing the
change of position between February 2017—when then-Secretary John Kelly
affirmatively decided not to end DACA—and Acting Secretary Duke’s September
4
The dissent agrees that “a policy shift of that magnitude presumably would
not have been made without extensive study and analysis beforehand.” Dissent at
1.
5
See Press Release, White House Office of the Press Secretary, President
Donald J. Trump Restores Responsibility and the Rule of Law to Immigration
(Sept. 5, 2017), https://www.whitehouse.gov/the-press-office/2017/09/05/
president-donald-j-trump-restores-responsibility-and-rule-law.
8
2017 decision to do the exact opposite, despite the principle that reasoned agency
decision-making “ordinarily demand[s] that [the agency] display awareness that it
is changing position” and “show that there are good reasons for the new policy.”
FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009).
At oral argument, the government took the position that because the Acting
Secretary’s stated justification for her decision was litigation risk, materials
unrelated to litigation risk need not be included in the administrative record.
Simply put, this is not what the law dictates. The administrative record consists of
all materials “considered by agency decision-makers,” Thompson, 885 F.2d at 555
(emphasis added), not just those which support or form the basis for the agency’s
ultimate decision. See also, e.g., Amfac Resorts, LLC v. U.S. Dep’t of Interior, 143
F. Supp. 2d 7, 12 (D.D.C. 2001) (“[A] complete administrative record should
include all materials that ‘might have influenced the agency’s decision,’ and not
merely those on which the agency relied in its final decision.”) (quoting Bethlehem
Steel v. EPA, 638 F.2d 994, 1000 (7th Cir. 1980)). And even if the record were
properly limited to materials relating to litigation risk, the district court did not
clearly err in concluding that it is implausible that the Acting Secretary would
make a litigation-risk decision “without having generated any materials analyzing
9
the lawsuit or other factors militating in favor of and against the switch in policy.”
Order at *4.
It was therefore not clear error for the district court to conclude that the
presumption of regularity that attaches to the government’s proffered record is
rebutted, and that ordering completion of the record was necessary and appropriate.
4. Nor did the district court clearly err in identifying the materials that
should have been included within the scope of the complete administrative record.
The government challenges the decision to include materials considered by
subordinates who then briefed the Acting Secretary, but this decision was not clear
legal error. We have held that the record properly includes “all documents and
materials directly or indirectly considered by agency decision-makers,” Thompson,
885 F.2d at 555, but have not yet clarified the exact scope of “indirectly
considered.” District courts in this and other circuits, however, have interpreted
that phrase to include materials relied on by subordinates who directly advised the
ultimate decision-maker. See, e.g., Nat. Res. Def. Council v. Gutierrez, No. C
01-0421 JL, 2008 WL 11358008, at *6 (N.D. Cal. Jan. 14, 2008) (“To the extent
[the government argues] that only those documents that reached [the agency’s]
most senior administrators were in fact ‘considered,’ courts have rejected that view
as contrary to the Ninth and other Circuits’ pronouncements . . . .”);
10
GeorgiaCarry.org, Inc. v. U.S. Army Corps of Eng’rs, 212 F. Supp. 3d 1348, 1352
(N.D. Ga. 2016) (“Documents and materials indirectly considered by agency
decision-makers are those that may not have literally passed before the eyes of the
decision-makers, but were so heavily relied on in the recommendation that the
decisionmaker constructively considered them.”); Amfac Resorts, 143 F. Supp. 2d
at 12 (“[I]f the agency decisionmaker based his decision on the work and
recommendations of subordinates, those materials should be included as well.”).6
Moreover, as noted in the district court’s October 17 order, a Department of
Justice guidance document directs agencies compiling the administrative record to
“[i]nclude all documents and materials prepared, reviewed, or received by agency
personnel and used by or available to the decision-maker, even though the final
decision-maker did not actually review or know about the documents and
materials.” U.S. Dep’t of Justice, Env’t and Nat. Res. Div., Guidance to Federal
Agencies on Compiling the Administrative Record 3 (Jan. 1999) (emphasis added).
It further provides that the administrative record should include “communications
6
We also note that the government has conceded in other cases that
documents relied on by subordinates are properly part of the administrative record.
See Oceana, Inc. v. Pritzker, No. 16-cv-06784-LHK (SVK), 2017 WL 2670733, at
*4 (N.D. Cal. June 21, 2017) (“Defendants acknowledge . . . that a decision-maker
can be deemed to have ‘constructively considered’ materials that, for example,
were relied on by subordinates . . . .”).
11
the agency received from other agencies . . . documents and materials that support
or oppose the challenged agency decision . . . minutes of meetings or transcripts
thereof . . . [and] memorializations of telephone conversations and meetings, such
as a memorandum or handwritten notes.” Id. at 3–4. The district court’s October
17 order complies with this Department of Justice guidance; the government’s
proffered record does not.
We recognize that such guidance is not binding; we nevertheless find it
persuasive as a statement by the Department of Justice as to what should be
included in a complete administrative record. We also note that the guidance
document DHS failed to comply with here was inexplicably rescinded the very
same day that the government filed this petition for a writ of mandamus.
Given that the district court’s interpretation of Thompson is consistent with
the rulings of other district courts, comports with the Department of Justice’s
guidance on administrative records, and is not foreclosed by Ninth Circuit
authority, we cannot say that the district court’s interpretation was clearly
erroneous as a matter of law. See In re Swift Transp. Co., 830 F.3d 913, 916–17
(9th Cir. 2016) (“It is well established that ‘[t]he absence of controlling precedent
12
weighs strongly against a finding of clear error [for mandamus purposes].’”)
(quoting In re Van Dusen, 654 F.3d at 845).7
5. The district court’s order that the government complete the record
with documents considered by former DHS Secretary John Kelly in the course of
deciding not to terminate DACA in February 2017 also withstands mandamus
scrutiny. This is not because of some freestanding requirement that all the
materials underlying a previous decision on a similar subject are always part of the
administrative record; rather, it simply recognizes that both decisions were part of
an ongoing decision-making process regarding deferred action: In February 2017,
Secretary Kelly ended other prioritization programs, but left DACA and DAPA in
place; in June 2017, Secretary Kelly ended DAPA but left DACA intact; finally, in
September 2017, Acting Secretary Duke ended DACA. The materials considered
by Secretary Kelly in the course of deciding against ending DACA in February
7
There is tension within our decisions about whether controlling Ninth
Circuit precedent is a necessary precondition to finding clear error as a matter of
law. Compare In re Swift Transp. Co., 830 F.3d at 917 (“If ‘no prior Ninth Circuit
authority prohibited the course taken by the district court, its ruling is not clearly
erroneous.’”) (quoting In re Morgan, 506 F.3d 705, 713 (9th Cir. 2007)), with
Perry v. Schwarzenegger, 591 F.3d 1147, 1159 (9th Cir. 2010) (“[T]he necessary
clear error factor does not require that the issue be one as to which there is
established precedent.”) (emphasis added). At a minimum, however, the lack of
such authority “weighs strongly” against finding clear error. In re Swift Transp.
Co., 830 F.3d at 916.
13
2017 did not cease to be “before the agency” for purposes of the administrative
record during that seven-month evolution in policy. Thompson, 885 F.2d at
555–56. The district court’s decision to order their inclusion in the record was
therefore not clear legal error.
6. Finally, the government makes two categorical arguments with respect
to privilege.8 First, it contends that Cheney v. U.S. District Court, 542 U.S. 367
(2004), bars the completion of the administrative record with any White House
materials, because requiring White House officials to search for and assert
privilege as to individual documents would be an unwarranted intrusion into
executive decision-making. Cheney, of course, did not involve an administrative
agency’s obligation under the APA to provide the court with the record underlying
its decision-making. It instead involved civil discovery requests that the Supreme
Court described variously as “overbroad” and as “ask[ing] for everything under the
sky.” Id. at 383, 387. We do not read Cheney as imposing a categorical bar
against requiring DHS to either include White House documents in a properly-
8
The government also appears to challenge the district court’s individual
privilege determinations, but it has provided little in the way of argument regarding
the specific documents ordered disclosed by the district court. We are unable to
conclude that the government has met its burden of showing that the district court’s
privilege analysis was clearly erroneous as a matter of law.
14
defined administrative record or assert privilege individually as to those
documents.
Moreover, the reasoning of Cheney appears to be based substantially on the
fact that the Vice President himself was the subject of discovery. See id. at 381
(“Here, however, the Vice President and his comembers on the NEPDG are the
subjects of the discovery orders.”), 382 (“These separation-of-powers
considerations should inform a court of appeals’ evaluation of a mandamus petition
involving the President or the Vice President.”). Here, although the government is
of course correct that the President is named as a defendant in some of the
underlying lawsuits, there is no indication that either his documents or those of the
Vice President would fall within the completed administrative record as ordered by
the district court. Cheney therefore does not render the district court’s order clearly
erroneous.
Second, the government argues that it was clear legal error to require a
privilege log and to evaluate documents allegedly protected by the deliberative
process privilege on an individual basis, since “deliberative” materials are not
properly within the administrative record at all. As noted above, the district court
reviewed in camera each of the documents as to which the government asserted the
deliberative process privilege, and ordered the inclusion of only those documents
15
that met the balancing standard laid out in FTC v. Warner Commc’ns, Inc., 742
F.2d 1156, 1161 (9th Cir. 1984). The court stated that it would similarly review in
camera any additional documents as to which the government claims privilege in
the future. Order at *8.
As the government acknowledges, we have not previously addressed
whether assertedly deliberative documents must be logged and examined or
whether the government may exclude them from the administrative record
altogether. However, many district courts within this circuit have required a
privilege log and in camera analysis of assertedly deliberative materials in APA
cases. See, e.g., Ctr. for Food Safety v. Vilsack, No. 15-cv-01590, 2017 WL
1709318, at *5 (N.D. Cal. May 3, 2017); Inst. for Fisheries Res. v. Burwell, No.
16-cv-01574 VC, 2017 WL 89003, at *1 (N.D. Cal. Jan. 10, 2017); California ex
rel. Lockyer v. U.S. Dep’t of Agric., No. C05-03508 EDL, 2006 WL 708914, at *4
(N.D. Cal. March 16, 2008). Again, “the absence of controlling precedent” and the
practice of the district courts “weigh[] strongly against a finding of clear error” for
purposes of mandamus. In re Swift Transp. Co., 830 F.3d at 916–17 (citation
omitted).
We further note that the “deliberative” materials at issue in the main case
cited by the government, San Luis Obispo Mothers for Peace v. U.S. Nuclear
16
Regulatory Comm’n, 789 F.2d 26 (D.C. Cir. 1986) (en banc), were transcripts of
literal deliberations among the members of a multi-member agency board. See id.
at 44. Where—as in Mothers for Peace—an agency is headed by a multi-member
board, the deliberations among those members are analogous to the internal mental
processes of the sole head of an agency, and thus are generally not within the scope
of the administrative record. Cf. Portland Audubon, 984 F.2d at 1549
(distinguishing Mothers for Peace as involving “the internal deliberative processes
of the agency [and] the mental processes of individual agency members”)
(emphases added). No such deliberations among a multi-member agency are at
issue here. The district court’s decision to require a privilege log and evaluate
claims of privilege on an individual basis before including documents in the record
was not clearly erroneous as a matter of law.
* * *
The district court’s October 17, 2017 order represents a reasonable approach
to managing the conduct and exigencies of this important litigation—exigencies
which were dictated by the government’s March 5, 2018 termination date for
DACA. In order for the government to prevail in its request for the extraordinary
remedy of mandamus, we must be “left with a definite and firm conviction that a
mistake has been committed.” In re Bundy, 840 F.3d at 1041 (quoting In re United
17
States, 791 F.3d at 955). We are left with no such conviction here, and mandamus
relief is therefore not appropriate.
Accordingly, the stay of proceedings entered on October 24, 2017 is lifted.
PETITION DENIED.
18
FILED
In re United States of America, No. 17-72917
NOV 16 2017
WATFORD, Circuit Judge, dissenting: MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
I understand why the district court ordered the Department of Homeland
Security (DHS) to provide a more fulsome administrative record. The agency’s
decision to rescind DACA will profoundly disrupt the lives of hundreds of
thousands of people, and a policy shift of that magnitude presumably would not
have been made without extensive study and analysis beforehand. But the desire
for greater insight into how DHS arrived at its decision is not a legitimate basis for
ordering the agency to expand the administrative record, unless the plaintiffs make
a threshold factual showing justifying such action. They have not done so here.
As a result, I think the district court’s order constitutes “a clear abuse of
discretion,” and the burden imposed by the order is exceptional enough to warrant
the extraordinary remedy of mandamus. Cheney v. United States District Court for
the District of Columbia, 542 U.S. 367, 380 (2004).
The district court’s order violates two well-settled principles governing
judicial review of agency action under the Administrative Procedure Act. The first
is that a court ordinarily conducts its review “based on the record the agency
presents to the reviewing court.” Florida Power & Light Co. v. Lorion, 470 U.S.
729, 743–44 (1985); see also Camp v. Pitts, 411 U.S. 138, 142 (1973) (per
curiam). If the record compiled by the agency is inadequate to support the
Page 2 of 6
challenged action, the reviewing court will usually be required to vacate the
agency’s action and remand for additional investigation or explanation. Florida
Power, 470 U.S. at 744. So in most cases the agency bears the risk associated with
filing an incomplete record, not the challengers.
The second principle is that documents reflecting an agency’s internal
deliberative processes are ordinarily not part of the administrative record. See In re
Subpoena Duces Tecum Served on the Office of the Comptroller of the Currency,
156 F.3d 1279, 1279–80 (D.C. Cir. 1998); Kansas State Network, Inc. v. FCC, 720
F.2d 185, 191 (D.C. Cir. 1983). An agency generally has no obligation to include
documents that were prepared to assist the decision-maker in arriving at her
decision, such as memos or emails containing opinions, recommendations, or
advice. These pre-decisional materials are not deemed part of the administrative
record because they are irrelevant to the reviewing court’s task. The court’s
function is to assess the lawfulness of the agency’s action based on the reasons
offered by the agency, Motor Vehicle Manufacturers Association of the United
States, Inc. v. State Farm Mutual Automobile Insurance Co., 463 U.S. 29, 50
(1983), not to “probe the mental processes” of agency decision-makers in reaching
their conclusions. Morgan v. United States, 304 U.S. 1, 18 (1938). Requiring
routine disclosure of deliberative process materials would also chill the frank
Page 3 of 6
discussions and debates that are necessary to craft well-considered policy. See
Assembly of the State of California v. Department of Commerce, 968 F.2d 916, 920
(9th Cir. 1992); San Luis Obispo Mothers for Peace v. Nuclear Regulatory
Commission, 789 F.2d 26, 45 (D.C. Cir. 1986) (en banc) (plurality opinion).
There are exceptions to these general rules. First, expansion of the record
may be required when the agency fails to make formal findings and thus leaves the
reviewing court unable to discern the agency’s reasons for taking the action that it
did. See Public Power Council v. Johnson, 674 F.2d 791, 793–94 (9th Cir. 1982).
(This exception doesn’t apply here because the memo issued by the Acting
Secretary explicitly states her asserted reason for rescinding DACA: concern that
the program would be invalidated in threatened litigation.) Second, the record may
be expanded if there is evidence that the agency cherry-picked the materials it
included by omitting factual information undermining the conclusions it reached.
See Portland Audubon Society v. Endangered Species Committee, 984 F.2d 1534,
1548 (9th Cir. 1993). And third, documents reflecting an agency’s internal
deliberations may on occasion be made part of the record, but only if the
challengers make “a strong showing of bad faith or improper behavior” on the part
of agency decision-makers. Citizens to Preserve Overton Park, Inc. v. Volpe, 401
U.S. 402, 420 (1971), abrogated on other grounds by Califano v. Sanders, 430
Page 4 of 6
U.S. 99 (1977); In re Subpoena Duces Tecum, 156 F.3d at 1279–80.
The plaintiffs have not made the showing necessary to trigger either of the
latter two exceptions. They have not shown any likelihood that factual information
considered by the Acting Secretary and relevant to her decision has been omitted
from the record. Indeed, it would be implausible to think that any such material
exists, given the nature of the reason asserted by the Acting Secretary for
rescinding DACA. Concern over the program’s vulnerability to legal challenge
would rest not on factual information but on the legal analysis of lawyers.
Documents analyzing DACA’s potential legal infirmities, prepared to assist the
Acting Secretary in assessing the gravity of the litigation risk involved, fall
squarely within the category of deliberative process materials mentioned above.
They are presumptively outside the scope of what must be included in the
administrative record (and may be privileged in any event).
Nor have the plaintiffs attempted at this stage of the case to show bad faith
or improper behavior on the part of the Acting Secretary. To be sure, they assert in
their brief that they suspect her stated reason for rescinding DACA is pretextual.
But bare assertions of that sort fall far short of the showing needed to overcome the
presumption that agency decision-makers have acted for the reasons they’ve given.
Because the plaintiffs have failed to establish that any of these exceptions
Page 5 of 6
apply, I don’t think the district court’s order can stand. The court directed DHS to
include in the administrative record all DACA-related “emails, letters, memoranda,
notes, media items, opinions, and other materials” considered by the Acting
Secretary, and all such materials considered by any other government
official—including officials from the Department of Justice and the White
House—who provided the Acting Secretary with written or verbal input on the
decision to rescind DACA. The court further expanded the record to include “all
comments and questions propounded by Acting Secretary Duke to advisors or
subordinates or others regarding the actual or potential rescission of DACA and
their responses.”
In my view, the district court exceeded the scope of its lawful authority to
expand the administrative record. The order sweeps far beyond materials related to
the sole reason given for rescinding DACA—its supposed unlawfulness and
vulnerability to legal challenge. The order requires the inclusion of all documents
mentioning DACA-related issues of any sort, and is overbroad for that reason
alone. But even if the order had been limited to documents analyzing the risk that
DACA might be invalidated, those materials are deliberative in character and thus
could not be made part of the administrative record absent a showing of bad faith
or improper behavior. And to the extent the order will compel the production of
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communications between the Acting Secretary and high-level officials in the White
House—including, potentially, the President himself—the order raises the same
sensitive separation-of-powers concerns that made mandamus relief appropriate in
Cheney. See 542 U.S. at 389–90.
These departures from settled principles are enough to establish that the
district court’s order is “clearly erroneous as a matter of law,” which is the most
important of the factors we consider when deciding whether to grant mandamus
relief. In re Bundy, 840 F.3d 1034, 1041 (9th Cir. 2016). The other factors weigh
in favor of granting relief as well. The order isn’t immediately appealable, and if
relief is denied the harm inflicted will be immediate and irreparable. As the
declarations submitted by the government attest, the search for documents
responsive to the court’s order will be burdensome and intrusive, given the large
number of government officials who may have provided written or verbal input to
the Acting Secretary. And the damage caused by public disclosure of otherwise
privileged materials can’t be undone following an appeal from the final judgment.
This strikes me as a classic case in which mandamus relief is warranted, and
I would therefore grant the writ.